When Edward Snowden hit the send button on a laptop in Hong Kong last June, just shy of his 30th birthday, he became the poster boy for an acutely American conundrum: the tension between the government’s constitutional commitment to the privacy of individuals and its responsibility for the safety of the nation.

A precocious computer whiz, Snowden had worked on network security for the Central Intelligence Agency before becoming a systems administrator on contract to the National Security Agency. In both capacities, he had pledged not to divulge state secrets. He had also taken an oath to “defend the Constitution against all enemies, foreign and domestic.” The Chinese government’s decision to let him pause in Hong Kong while fleeing arrest, and the Kremlin’s grant of asylum, complete with Russian President Vladimir Putin’s endorsement of Snowden’s “honor,” guaranteed that he would be condemned as a traitor in the United States.

But vilification was by no means universal. Across the political spectrum, from the Tea Party to human rights organizations on the left, there is wariness of unwarranted government intrusion into citizens’ private lives. In an interview in Hong Kong en route to Moscow, Snowden played to that deep strain in the U.S. body politic. He characterized himself as a patriot and whistleblower, bent on saving his country from becoming an Orwellian security state.

That conceit resonated with some back home. Five months later, on the eve of Thanksgiving, a civil libertarian group called the Partnership for Civil Justice Fund bought space for a giant ad on the sides of Washington, D.C. buses. Its message: “Thank You Edward Snowden.” Just before Christmas, Snowden gave The Washington Post a 14-hour interview that boiled down to “You’re welcome.” A number of year-end summaries of 2013 proclaimed the dawn of “the Snowden Era.” Snowden’s current whereabouts are unknown.

The Russians and the Chinese—who, like the United States, are superpowers in the realm of cyberhacking, cyberwarfare, and every other form of eavesdropping—have barely masked their schadenfreude.

With the approach of the first anniversary of the most copious and sensational leakage of intelligence secrets in history, the consequences of his actions continue to reverberate. In addition to evidence that the NSA had been collecting and storing some of the phone records of most Americans as well as the emails and other private Internet correspondence of many citizens, Snowden revealed that the agency has the ability—and indeed the practice—of listening in on phone conversations of foreign officials, most notoriously (but no longer) Angela Merkel, the chancellor of Germany.

America’s diplomacy has been hobbled, its image abroad tarnished, its alliances strained, its government’s standing in the eyes of its own people damaged, its policies challenged in court and, in some cases, already undergoing major revision at the behest of the White House.

The NSA itself is in trouble with otherwise friendly foreign governments and also with the giants of the American high-tech sector on which it depends for hardware, software, systems-design, encryption and decryption techniques, and cooperation in providing information about their customers.

As for President Barack Obama, he was accused of deception in his early efforts to tamp down the uproar. His personal approval rating plummeted, in no small measure because of the NSA furor (which was followed shortly after by an even more politically damaging misadventure in cyberspace—the botched rollout of the Affordable Care Act website). In mid-January—seven months after the first mega-leaks—he laid out an array of decisions, guidelines, and proposals intended to tighten limits on some NSA practices, while protecting its capability to monitor communications that might help the government thwart the nation’s enemies. At the end of March, he submitted to a receptive Congress some sweeping reforms. Some critics worried he was going too far; others complained he was not going far enough.

The great debate is far from over. But this much is certain: the U.S. government has, at the highest level, accepted the galling fact that it must take steps in the direction Snowden wants: new curbs on the agency he had worked for and betrayed.

The passions in this controversy are high, as are the stakes. The issues are complex and in many cases esoteric. As a lawyer who long ago left that profession for journalism, but with a continuing interest in the law, I have focused my own attempt to cover this story on four prominent, knowledgeable, and respected experts whose differing perspectives on the problem and its solution help frame the debate.

Two of them are U.S. senators: Dianne Feinstein (D-Calif.), a liberal on reproductive freedom, gay rights, and gun control but, in her capacity as chair of the Senate Select Committee on Intelligence, the NSA’s most powerful congressional defender; and Ron Wyden (D-Ore.), the agency’s leading critic on Capitol Hill. The other two are outside government: Joel Brenner, a former NSA inspector general who is still broadly, but not uncritically, supportive of the agency; and Jameel Jaffer, the deputy legal director of the American Civil Liberties Union (ACLU) and a leader of the movement to bar the NSA from hoovering up phone records and curb its surveillance of Internet and other electronic communications.

All four not only believe deeply in the Constitution—they know it well. Despite their differences, they also understand that the right to privacy is itself a conundrum, and that it has become more so with the passage of time. Therefore all four would agree with the proposition that there need to be reforms that take account of a changing world. What those reforms should be is where they come to a parting of the ways.

The Founders’ Intent

The Fourth Amendment, which obligates the U.S. government to ensure that citizens “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” was ratified by Congress as part of the Bill of Rights 223 years ago. Until the invention of modern communications technologies, it was fairly easy for citizens to know whether the authorities were rummaging through their property. To search a home or office, officers of the law had to physically enter. The Fourth Amendment generally prevented that from happening without a warrant and gave owners the right to challenge whether entries and confiscations were “reasonable.”

Beginning in the second half of the 19th century, however, technological advances made it easier for the government to “search and seize” the contents of private communications without citizens’ knowledge, thus depriving them of the ability to object. Wiretapping is almost as old as the telegraph, going back at least to the Civil War. Phone tapping has been an instrument of law enforcement and counterespionage since the beginning of the 20th century. An early instance of it was useful in probing the intentions of real and potential foreign enemies. In the first months of 1917, the British intercepted, decoded, and passed to Washington the “Zimmermann telegram”: a proposal from the Kaiser Wilhelm II’s foreign minister to the Mexican government promising that if Mexico allied itself with Germany in the event that the United States entered World War I on the side of the Allies, Germany would reward it with the return of formerly Mexican territory in Texas, New Mexico, and Arizona. The revelation helped stoke support for Congress’s declaration of war that April.

However, once the war had ended, President Herbert Hoover’s secretary of state, Henry Stimson, famously shut down the “Black Chamber,” a precursor of the NSA, which had begun intercepting and decoding foreign diplomats’ cables in peacetime, too. “Gentlemen,” Stimson harrumphed, “don’t read each other’s mail.”

Others in the U.S. government were not so naïve. By the late thirties, Army and Navy intelligence officers, aided by civilian experts and technicians, were decoding diplomatic cables from Tokyo. By New Year’s Day 1941, they were picking up hints that Japan was preparing to attack the United States. But there was a failure of what today would be called “connecting the dots.” As a result, the nation’s leaders—including Stimson, who was then Franklin Roosevelt’s secretary of war—took no action to protect the Pacific Fleet.

Senator Feinstein, the daughter of an air raid warden in San Francisco, was 8 years old in December that year. Pearl Harbor, she feels, engendered her hawkish views on national security and intelligence. She remembers the blackout after the attack and a submarine net draped across the Golden Gate to prevent the Japanese from sneaking into San Francisco Bay.

Joel Brenner views that national trauma as a reminder that the nation’s most damaging intelligence scandals pertain not to over-zealousness, but to its opposite, “the failure to collect or understand critical information” in time to identify a threat and provide enough advance warning to prepare for it or, better yet, preempt it.

Four years after the end of World War II, America saw another critical intelligence failure. The Soviets tested an atomic bomb in 1949, considerably sooner than U.S. experts had estimated. Three years later, President Harry Truman created the NSA. Its mandate was to eavesdrop on foreign governments and their agents, particularly those in the Communist world, because the cold war, which was fought in the shadows rather than on battlefields and the high seas, put a premium on covert means of offense and defense.

From its headquarters at Fort Meade, Maryland, the NSA went quietly about the highly technical business of gathering “signals intelligence,” keeping its head down so successfully that the initials were said to stand for “No Such Agency.” The CIA, by contrast, specialized in “human intelligence,” i.e., information gathered by American agents and moles inside foreign governments. That made it a source of fascination to the public, and the subject of many a Hollywood thriller.

The nation’s spymasters also undertook covert operations that sometimes went disastrously awry, putting the CIA at the center of a series of public embarrassments. One of the earliest and most damaging was the Bay of Pigs fiasco. Senator Wyden traces his jaundiced view of covert operations to that episode. His journalist father, Peter, wrote a revelatory and scathing book on the inside story of the invasion, which he likened to “Waterloo staged by the Marx Brothers.” The same could be said of the ignominious end of the Nixon presidency, brought about by a wiretapping caper mounted at the behest of the White House by a ragtag band that included several former operatives of the FBI and the CIA.

Watergate shocked the American public and spurred many of its representatives in Congress to demand an investigation into the past activities of both organizations as well as the NSA and others. The result was the creation of two congressional committees in 1975, chaired by Frank Church (D-ID) in the Senate and Otis Pike (D-N.Y.) in the House of Representatives. Their hearings exposed secret, arguably illegal wiretapping, bugging, and harassment of American citizens, including Supreme Court justices, reporters, and government officials, all in the name of collecting intelligence about threats to national security. The most notorious case, first exposed in the 1960s and fully documented by the Church Committee, was the wiretapping of Martin Luther King, Jr. by the NSA and by the FBI under J. Edgar Hoover, who believed him to be part of a Communist conspiracy.

Thanks in large part to the Church Committee—the forerunner of the one that Dianne Feinstein now chairs—the NSA was no longer immune to public censure and strengthened oversight. The committee helped bring to light the NSA’s Project SHAMROCK, which had been part of a 30-year surveillance of telegraphic and telephonic data coming into and out of the United States. Many of the senders and recipients were American citizens who were targeted without warrants or court authorization. Senator Church called it “probably the largest governmental interception program affecting Americans ever undertaken.”

As a result of these investigations, Congress passed, and Jimmy Carter signed into law, the Foreign Intelligence Surveillance Act (FISA) in 1978. Its purpose was to buttress the Fourth Amendment’s protection against unreasonable search and seizure by putting a layer of judicial review between the intelligence agencies and their surveillance targets—at least when those targets are U.S. citizens or permanent resident aliens. FISA has undergone numerous revisions over the last three decades. As currently written, it prohibits the government from intentionally targeting for electronic eavesdropping any “U.S. person” anywhere, or any foreigner located inside the U.S., without a warrant issued by a member of the special, secret Foreign Intelligence Surveillance Act Court (FISA Court). To get a warrant from the court, the government has to show “probable cause” to believe that the target is operating as an agent of a foreign power or a terrorist group.

For more than three decades, the FISA Court—much like the NSA, whose surveillance activities it sometimes oversees—kept its head down. The court held secret proceedings in a secure vault first in the Justice Department, then later in the main federal courthouse in Washington, D.C. Its judges, chosen by the chief justice of the United States from the ranks of federal judges around the country, heard arguments almost entirely from government lawyers. All its decisions were classified, and very few were appealed, if only because potential plaintiffs were not aware that their communications had been intercepted, and if they had suspicions, they had no proof.

The basic post-Watergate compromise—that executive branch surveillance programs would be guarded from public scrutiny but closely overseen by all three branches of government—prevailed through the 1990s. By then, the Soviet Union had disappeared from the map.

With the cold war over, the new, increasingly preoccupying threat to America was personified by Osama bin Laden. Believed to have connections to the bombers of the World Trade Center in New York in 1993, he was indicted for the destruction of two U.S. embassies in Africa in 1998 and his organization, al Qaeda, claimed responsibility for the deadly attack on the USS Cole at harbor in Yemen in October 2000. The emergence of this new menace to America and its allies brought an upsurge in political and public support for aggressive surveillance of potential terrorists, and a muting of the concerns that had arisen in the 1970s about the past sins and excessive zeal of U.S. intelligence agencies.

The Game Changer

Then, literally out of the blue on a sunny fall morning, came the clincher. Feinstein recounted to me what it was like watching television as the Twin Towers burned. She cannot get out of her head “the slap, slap, slap of bodies hitting the canopy next door.” She, like all but one of her colleagues in the Senate, joined the bipartisan rush to adopt the USA PATRIOT Act of 2001 (Patriot Act), which widened the scope of the government’s electronic surveillance, search and seizure, and other investigative powers.

In the months before 9/11, Joel Brenner had been trying cases as a founding partner in a Washington, D.C. law firm. As he walked home from work that Tuesday evening, fires were still burning at the Pentagon. It was then that he decided he wanted to go to work for “the people who were chasing the bastards who were blowing us up.” He spent four years as the NSA’s inspector general, then three years as the nation’s top counterintelligence official, and then another 15 months as the NSA’s senior counsel.

Ron Wyden also joined the nearly unanimous vote for the Patriot Act shortly after the 9/11 attacks. But before long he came to a conclusion that was nearly the opposite of Feinstein’s and Brenner’s. He worried that the pendulum was swinging too far away from a proper regard for the Constitution and would inevitably lead to abuses by the intelligence community. In 2003, he led the battle in the Senate that defunded the Total Information Awareness program, a Pentagon unit established to hunt down terrorists by scouring mountains of data to reconstruct the electronic footprints of millions of people.

However, just as Wyden feared, the prevailing sentiment on Capitol Hill was that the reforms of the 1970s had impeded the NSA from uncovering the 9/11 plot in time to prevent the attacks. It was in that atmosphere that two new programs were put into place during George W. Bush’s presidency.

In 2006, the FISA Court secretly authorized the NSA to collect from phone companies the records of trillions of phone calls made within, to, or from the United States for analysis and storage. The purpose of this gigantic undertaking was to identify foreign terrorists’ actual, possible, or potential collaborators who were on American soil. It came to be known as the “bulk phone records program,” or the “Section 215 program,” after a provision in the Patriot Act that allowed the government to demand access to “any tangible things,” so long as the government specified that they were “relevant to an authorized investigation… to protect against international terrorism or clandestine intelligence activities.”

Two years later, near the end of the Bush presidency, Congress passed Section 702, an amendment to the Foreign Intelligence Surveillance Act, authorizing the targeting of communications of “foreign persons who are located abroad.” This provision became the basis for sweeping, clandestine NSA programs including one called PRISM, an acronym for “Planning Tool for Resource Integration, Synchronization, and Management.” It was actually a gargantuan collection tool that enabled the NSA to gather from U.S.-based Internet companies hundreds of millions of emails, Internet voice calls, videos, photos, chat services, stored data, and other private Internet communications, if the targets were “reasonably believed” to be non-U.S. persons overseas who possessed “foreign intelligence information.”

Unlike the phone-records program, PRISM made available to the NSA the contents of the communications that were collected. At least nine U.S.-based companies were compelled by the surveillance court to cooperate with the NSA in facilitating access to PRISM data: Google, Facebook, Microsoft, Apple, Yahoo!, Paltalk, AOL, YouTube, and Skype. The companies rarely appealed court orders, and complied with alacrity. Patriotism was certainly a factor, but so was their reliance on the government for business, security clearances, help with network security, and other benefits.

Looking back on the relentless growth of the NSA’s mandate in the aftermath of 9/11, the usually upbeat, 6-foot, 4-inch Wyden knits his brow in frustration over how few of his colleagues in the Senate wanted to hear about “the always-expanding surveillance state that hour by hour chips needlessly away at [our] liberties [without] making us any safer.” As he sums it up, the overall message he kept trying to deliver in the pre-Snowden era was that “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned, and they will be angry.” When I spoke to him about his struggle during those years, he recalled it as “dispiriting and lonely.”

As a member of the Intelligence Committee that Feinstein chairs, Wyden has been obliged to keep the secrets that the executive branch shares with it. So he has had to tread carefully when questioning administration witnesses in public hearings. Nonetheless, in March last year—three months before the Snowden leaks—Wyden asked James Clapper, the director of national intelligence, at a public hearing: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No,” responded Clapper, but he added “not wittingly” in response to a follow-up question. Even with the caveat, it was a falsehood, though it was not widely chronicled until after the Snowden leak. Clapper claims it resulted from an honest misunderstanding of the question.

Insofar as Wyden’s admonitions were applauded in previous years, it was most frequently by civil-liberty activists like Jameel Jaffer, who vigorously opposed the government’s aggressive response to 9/11. When the planes hit the Twin Towers, Jaffer was just starting what would probably have been a highly lucrative career working on equity derivatives at Davis Polk & Wardwell, one of the nation’s top corporate law firms. A graduate of Harvard law school and editor of its law review, he began to dedicate his spare time to pro bono work with the ACLU, which was representing some of the more than a thousand Muslim immigrants in the United States who were rounded up on immigration charges in the months following the attacks. This work proved much more satisfying to him than his corporate work. “We were their only connection to the outside world,” he told me.

None of the detainees turned out to be terrorists. And Jaffer, born to a Muslim family in Canada, had found his calling. He left his firm and went to work full time for the ACLU.

But just as Wyden belonged to a small minority in Congress, Jaffer’s opposition to the government’s response to 9/11 put him at odds with U.S. public opinion. The near-unanimous votes in Congress and in the polls reflected overwhelming support for the Patriot Act.

However, that mood, both on Capitol Hill and among the public, faded over the course of the dozen years between 9/11 and the Snowden leaks, first gradually, then precipitously, as the military adventures the George W. Bush administration launched in Afghanistan and Iraq as part of the global war on terror turned into costly quagmires. In the second term of Bush’s presidency, more and more Americans questioned his judgment and wanted a return to normalcy, a sentiment that helped Barack Obama win the White House. But thanks to legislative gridlock, a federal shutdown, and budget sequestration, his election did not stanch the hemorrhaging of the citizenry’s confidence in its government.

The Whole Haystack

At the same time that public trust in the government was in something close to free fall, the digital revolution was gathering momentum, and the NSA was taking full advantage of it. Moore’s Law had made possible an exponential leap in the capacity to gather, store, and sift through trillions of electronic communications, both internationally and within the United States. That gave the intelligence agencies potentially invaluable tools for tracking spies, criminals, and—ever since 9/11—the new Public Enemy No. 1: terrorists. With terrorists using cell phones, the Internet, and commercially available encryption software to conceal themselves, communicate covertly, and plan acts of mass murder, officials charged with defending the United States were all the more determined to make the most of the new means of gathering and analyzing information.

The result was a particularly dramatic manifestation of the tendency for a transformative technology to outpace its own regulation. Before the Snowden leaks, the two most significant examples of this phenomenon were the invention of the steam engine, which made possible the Industrial Revolution but also triggered the process of climate change, and the harnessing of the power of the atom, which could help light up the world with clean energy but could also incinerate it in global thermonuclear war. The Snowden leaks brought to light a third example: a revolution that has made it possible for us to communicate more easily, but also for our government to collect and analyze our communications on a scale that the phrase “Big Data” does not begin to capture. This exponential leap in the ability to collect and crunch data has—to a dizzying degree and at a dizzying pace—run roughshod over laws, standards of conduct, and international norms, leading many observers to conclude that the law as currently written is inadequate to maintain the balance between national security and individual privacy called for by the Fourth Amendment.

Suddenly, defenders of robust, proactive national security policies like Feinstein and Brenner are on the defensive, and long-time critics like Wyden and Jaffer, finding themselves to be in tune with a considerable portion of American public opinion, are having less trouble getting a respectful, sympathetic hearing. While the surveys have been mixed, a Pew Research Service poll last summer indicated that, for the first time in a decade, a majority of Americans were more concerned about the government infringing on their civil liberties than about a potential terrorist attack, and also that a majority saw Snowden as a whistleblower, not a traitor or a criminal.

As for the NSA, it found itself in double jeopardy—and a paradoxical one: it was accused of rogue behavior in its snooping, and of incompetence in protecting the information it had collected. The once nearly anonymous agency had a new nickname: “No Secrets Anymore.”

Yet while a huge amount of highly classified and previously protected information is now in the public domain, the contents of that information are widely misunderstood. That is partly because the material itself is so copious and esoteric that it is hard to digest and summarize accurately, especially amid a feverish controversy. Many news reports have created the mistaken impression that Americans are already living in an Orwellian nightmare, with Big Brother routinely listening to or reading transcripts of the phone conversations of ordinary citizens going about what they think are their constitutionally protected private lives. Snowden has done everything he can to reinforce that impression, starting with his own contributions to the debate first from Hong Kong, then from Moscow. In an “alternative” Christmas message, he warned that a child born today will “never know what it means to have a private moment,” suggesting that the U.S. government is already bugging our personal lives.

However, the material collected by the NSA under Section 215 identified only which phone numbers were used to call other phone numbers, when calls were made, and how long they lasted; the data gathered did not include the callers’ names, their precise locations, or what was said in the conversations.

Jaffer finds no comfort there, given the ease with which the NSA could track down names and locations if it chose to. “The NSA is tracking virtually every aspect of Americans’ lives,” he says. “Who they communicate with, who they associate with, what they buy online, what they do online… I’m not suggesting that they’re not trying to go after terrorists. They are. But they’re draining the ocean in order to catch a few fish.” Jaffer is convinced that the NSA has abused its powers. Even if it has not done so, he believes that Americans’ knowledge that their phone records are in the agency’s computers is sure to have a “chilling effect” on their interactions with one another and with their government.

Wyden agrees with Jaffer. Phone records, he says, can be tremendously illustrative of a person’s private life: “If you know who a person called and when they called and generally where they called from, you know a tremendous amount about them”— political and religious affiliations, sexual behavior and extramarital affairs, problems with alcohol, drugs, or gambling, medical conditions, and more.

The NSA argues that it needs to comb through the coordinates of as many of these conversations as possible in the hunt for the rare but critically important phone call between a foreign terrorist and a collaborator in the United States. Although it is obvious that not all foreign terrorists’ phone contacts are witting participants in a conspiracy, or even aware that there is a conspiracy, Keith Alexander, the former director of the NSA, is credited with what has become a pithy defense of the proposition that more access is better and total access is best: when searching for needles in a haystack, “you need the whole haystack.”

Brenner believes that the Alexander Doctrine is not a cover for spying on Americans. NSA analysts are totally fixated on foreign targets, he stresses, and have no interest in the private lives of U.S. citizens whose phone records are gathered. For this and other reasons, Brenner says, the chance of a citizen’s record being scrutinized is “infinitesimal—like winning the lottery.”

Feinstein agrees and believes that the public would too if it understood the nature of the phone records program. “It made my heart stop,” she told a cluster of reporters and staffers after a hearing in late September, when the media created “the impression that Americans are being searched and ‘surveilled’ willy-nilly. They are not!”

I got a dose of her strong feelings when I used the word surveillance during an interview. She sat bolt upright and exclaimed: “You just did it! You said ‘surveillance.’ It isn’t! It’s a data-collection of phone numbers and times of phone calls from someone who’s a suspected terrorist abroad to someone in this country.”

Over the five years that she has been chairman of the Intelligence Committee, Feinstein has seen more inside information on NSA activities than most of her fellow lawmakers. She is convinced that, since the FISA reforms of the seventies put safeguards and multiple layers of oversight in place, there has been no evidence of the NSA’s seriously violating those strictures. She is also convinced that signals intelligence is, if anything, more indispensable than ever at a time when human intelligence—that is, information from undercover U.S. operatives operating abroad or inside hostile organizations like al Qaeda—is so hard to come by. That leads her to worry that curbs on the phone records program might increase the exposure of Americans to danger from terrorists and other enemies, perhaps including mass-casualty cyber, biological, or even nuclear attacks.

Brenner, too, vouches for the “superb compliance and legal departments” and “rigorous, indeed severe auditing protocols” at the NSA as well as its hand-in-glove cooperation with the Justice Department. “No other nation has such a leash on its intelligence services,” asserts Brenner. He draws a stark distinction between the Snowden revelations and those that the Church and Pike Committees brought to light in the seventies. “This one is different. There has not been a whiff of intelligence abuse for political purposes. [The controversy concerns] practices approved by Congress and the federal courts and subject to heavy and effective oversight.”

Wyden, Jaffer, and other critics believe the contrast between the current era and the Watergate-era abuses is a red herring. The real problem is not the NSA’s violation of the post-Watergate rules but the adherence to those rules, which permit what they and other critics regard as unconstitutional forms of search and seizure. In pressing this point, Wyden invokes the historic origin of the Fourth Amendment itself, which grew out of the intention to prevent abuses of authority like those of the British colonial officials who sent Redcoats into law-abiding citizens’ homes to conduct indiscriminate searches under “general warrants.” Wyden sees the NSA’s empowerment to collect phone records by authorization of FISA judges as a latter-day version of such abuses.

Jaffer agrees, adding that the process Snowden revealed was “structurally incapable of serving as a meaningful check on government surveillance [because] it hears arguments only from one side [and] behind closed doors…. We have given the NSA this sweeping power to monitor the communications of ordinary people. The scandal is what’s legal.”

The PRISM program presents a different kind of challenge to civil liberties because of the fact that, unlike the phone records program, it collects the contents of communications. And although it is forbidden by law from targeting “U.S. persons” (citizens and resident aliens) or even foreign visitors without individual warrants, Jaffer believes that the program was “designed in a way that makes the large-scale collection of Americans’ communications inevitable,” since the global dragnet cannot help but catch U.S.-based users of the World Wide Web.

The NSA also sweeps in billions of international telecommunications, including many to or from Americans, by tapping cables that flow through U.S. territory en route to foreign destinations. It has stored information about the locations and movements of hundreds of millions of cellphones around the world and their owners, including many Americans affected “incidentally” (that is, without being specifically targeted); collected hundreds of millions of contact lists from personal email and instant messaging accounts outside the U.S., including those of millions of Americans who have contacts abroad; sought to undermine encryption standards and products that are used not just by terrorists but by banks and other legitimate businesses to secure their confidential data; secretly broken into the main communications links to Yahoo!, Google, and, it is suspected, Microsoft data centers abroad, leading to howls of outrage both from foreign allies and from corporate headquarters of Internet companies in Silicon Valley and Puget Sound, the two epicenters of the American private sector’s most competitive major enterprise.

After the Snowden leaks, many of those companies hardened their encryption and reinforced their firewalls to protect themselves from their own government. They feared that NSA collection of their customers’ private data would lead many to switch their business to foreign competitors, and that U.S. companies may be whipsawed between obeying FISA Court orders to spy abroad and incurring penalties for violating foreign governments’ privacy rules.

Brenner, while an overall defender of the NSA and its practices, has acknowledged that American companies will “probably [lose] tens of billions of dollars in business to their [European Union] competitors,” though he attributes that move to the competition to “the incomprehensibly silly idea that European security services do not collect data on EU citizens.” In other words, everyone is spying on everyone else, even if not on the scale of the NSA.

The capstone to this whole sorry tale is the impact it has had on U.S. diplomatic relations. While Americans, understandably, have focused on the debate over their own liberty, privacy, and security, foreign audiences have been mesmerized by Snowden’s revelation of massive U.S. surveillance of leaders, governments, and citizens around the world.

The most damaging disclosure was that German Chancellor Merkel’s cell phone was on the NSA’s target list. That flap moved Feinstein to blast the NSA for spying on friendly foreign leaders without keeping the congressional intelligence committees, or the president, “satisfactorily informed.” She was concentrating her ire on the process—and protecting Obama from the inevitable question, “What did the president know and when did he know it?”

Does Surveillance Keep America Safe?

With all this wreckage and ruction at home and abroad, the question of whether the benefits of massive intelligence-gathering programs justify the costs—the infringement on privacy and the harm done to relations with our allies—has been vigorously but inconclusively debated. Answering this requires asking another question: What are the national-security benefits of these programs? Have they helped nip deadly conspiracies in the bud?

With respect to the phone records program, the disagreement between Senators Feinstein and Wyden has been especially stark, and it is reflected in a bipartisan debate underway over the past few months on the Hill.

Feinstein believes if the phone records program had been up and running in 2001, it might have alerted the government that Khalid al-Mihdhar, a major al Qaeda operative from Saudi Arabia who was on NSA and FBI watch lists, was in San Diego, making calls to an al Qaeda safe house in Yemen. That information might have been a giveaway that the plan had “gone operational.” Instead, the NSA sleuths tracking terrorists thought al-Mihdhar was overseas. He was one of the five hijackers of American Airlines Flight 77, where 189 people (including the hijackers) were killed when it crashed into the Pentagon.

Keith Alexander has posited the same counterfactual speculation. Playing it forward, he and Feinstein both believe that ending the phone records program would increase America’s vulnerability to another attack.

By contrast, on the basis of what Wyden has seen as a member of the Intelligence Committee, he is skeptical that the program would have made a difference on 9/11 or “has actually provided any unique intelligence.” He believes that while the NSA’s phone records program may have made marginal contributions, other, less controversial methods were more important. Alexander’s deputy, Chris Inglis, who has also left the agency, acknowledged in an NPR interview in January that the phone records program had played a critical role in only one relatively minor case, which did not involve a planned attack, but maintained that it had “made a contribution” in another 11 cases. One example, according to the NSA, was a phone record that (in combination with a PRISM Internet tipoff) helped foil a plot to blow up subways in New York City in 2009—a claim that has elicited deep skepticism from critics.

These publicly acknowledged instances may not sound like much after many years and billions of dollars spent looking for those needles in the haystack. But there may be more conclusive and impressive episodes where the NSA played the lead role but cannot brag about them because of sensitivities about the methods used or because the threats in question are ongoing. In any case, intelligence experts both in and out of government stress that it is rare for any one agency or program to be the sole player in a successful surveillance operation.

“You put together a mosaic, with a lot of different pieces of information,” explains Brenner. “So the more you have the better.” Still, he adds—and here, unlike Feinstein, he puts the burden on the NSA to prove its case—“Congress shouldn’t allow [the phone records program to continue] unless it is quite satisfied that the risk of terrorist attacks in the U.S. will rise in some significant if not measurable way if we don’t do it.”

To be certain of meeting that standard would require a crystal ball. Still, Brenner has captured both the obligation and the dilemma faced by decision-makers in all three branches of the federal government. Policymaking and regulation in the executive branch, legislation on the Hill, and adjudication in the courts—all are part of the government’s overall effort to manage an uncertain future. That effort is inherently based on guesswork, informed by what is known about the past and present. Since the track record of the phone records program to date is, at best, mixed, it is no wonder that there is daylight between Feinstein and Brenner, not to mention a night-and-day difference between the two of them and Wyden and Jaffer.

The PRISM program poses an even trickier version of the cost/benefit question: it is easier to justify its efficacy, but because it goes after the contents of messages, not just their origin and destination, it is more intrusive on the liberties of the people whose communications it scoops up. Moreover, while PRISM is more restrictive in its formal mandate (i.e., it is targeted only at foreign bad actors), in practice it does pry “incidentally” into the Internet traffic of many law-abiding U.S. citizens.

Yet there’s no denying that PRISM’s mining of emails and other Internet messages has produced a mother lode of useful information. An internal NSA document leaked by Snowden described the program as “the most prolific contributor to the President’s Daily Brief” and the NSA’s “leading source of raw material, accounting for nearly one in seven [of all the intelligence community’s secret] reports.”

More to the point, PRISM has often contributed to the collection of actionable intelligence used in the fight against terrorism. Even Wyden, the NSA’s strongest congressional critic, acknowledges as much. He and his ally on the surveillance issue, Senator Mark Udall (D-Colo.), said in a joint statement last summer that “multiple terrorist plots have been disrupted at least in part because of information obtained under Section 702.”

What’s To Be Done?

Jaffer has long contended that PRISM is, in its essence, a violation of the Fourth Amendment as well as the First Amendment right to freedom of association. He was the lead attorney for a group of ACLU clients—lawyers, journalists, and human rights advocates—in a challenge to Section 702 that the Supreme Court rejected, in a familiar 5-to-4 split, in February 2013. That was, of course, pre-Snowden. But the leaks have shown no sign of nudging the judiciary toward anything like a consensus. Quite the contrary. In December alone, a U.S. district judge in the District of Columbia resoundingly declared the phone records program unconstitutional, and 11 days later another federal judge, in Manhattan, just as forcefully upheld the program.

That same month, President Obama­—a chief executive who is highly deliberative by nature and trained in constitutional law—received a report from a panel of five former government officials recommending new or tightened restrictions on NSA practices.

A number of those proposals were reflected in Obama’s speech at the Justice Department on January 17. He walked a fine line between responding to the global outcry and, as he clearly saw it, protecting the NSA’s ability to protect America. Among the measures he announced was an immediate order for the NSA to limit its surveillance of phone records to connections that were two degrees of separation (or “hops”) from a known or suspected terrorist, rather than the three degrees that had been permissible before. The president also called on the executive branch and, ultimately, Congress to come up with a plan for warehousing the data in private hands, with a requirement that counterterrorist agencies seek access the records on a case-by-case basis.

As Obama made clear, many features of his plan require review and refinement within the executive branch. As the designated custodian of these records, the private sector, too, will have an important role to play, and not necessarily one it welcomes. The phone companies have been understandably skittish about helping the government—as many will see it—pry into the lives of their customers.

And then there is the legislative branch, which was the source of the restrictive laws on intelligence activities in the seventies and the eager partner of the executive branch in undermining those laws during the two pre-Snowden decades.

Many in Congress were quick to spin Obama’s decisions and suggestions as consistent with their own. Wyden and two Senate allies, Udall and Martin Heinrich (D-N.M.), issued a joint statement in January saying they were “very pleased that the president announced his intent to end the bulk collection of Americans’ phone records,” even though the president had made no flat assertion to that effect.

Feinstein and her House counterpart, Representative Mike Rogers (R-Mich.), said, more accurately, that they were “pleased the president underscored the importance of using telephone metadata to rapidly identify possible terrorist plots,” a task that they—like the NSA—believe requires continuing bulk collection.

Jaffer shared their interpretation of Obama’s overall message —“He tinkered with the margins, but he seems to have rejected, at least for now, any far-reaching changes, which means that he has accepted, at least for now, the proposition that the NSA should be collecting essentially everything”—though not their reaction to it, because the bulk collection is the very thing he and other critics want to see changed.

In March, the House Intelligence Committee’s ranking Republican and Democratic members said that they were close to agreement on legislation that would end bulk collection of phone records. Shortly thereafter, President Obama unveiled a proposal that would do just that. Under the new plan, the government would no longer systematically collect and store Americans’ calling data, which would instead reside in the hands of phone companies. Only with permission from a judge could the government obtain specific, suspect records.

In at least one area of reform—more transparency and accountability—there is a degree of convergence among Wyden, Feinstein, Brenner, Jaffer, and many others who differ over other aspects of surveillance and reform.

Wyden has long since staked out his objection to a “secret court”—“the most bizarre court in America” he calls it—which deliberates behind closed doors and hears only from government counsel, then issues interpretations that are classified. “The law should always be public,” he says. “How do Americans make informed judgments about policies if there’s a big gap between the laws that are written publicly and their secret interpretation?”

Brenner agrees that “we have a massive over-classification problem,” adding, “Look, democracies distrust power and secrecy, and intelligence organizations are powerful and secret. The only way to square that circle is if the public understands what the rules are and has reason to think they are being followed.” While he regards Snowden as “a traitor and a scoundrel,” he faults the government for not having publicly revealed and explained the phone records program years ago. Had that happened, the American people would have had “the kind of debate that’s happening now”—but in a less sensationalized and more deliberative atmosphere.

It is ironic that in the wake of the Snowden leaks the NSA took steps toward precisely that kind of openness with its decision last December to allow Benjamin Wittes and Robert Chesney, scholars in the Governance Studies program at Brookings, to interview five top officials of the agency at its Fort Meade headquarters. The result, posted online as a series of Lawfare blogs and podcasts, was an extraordinarily candid, sometimes eye-popping explanation of the inner workings of the intelligence-gathering process, the oversight and enforcement procedures, the relationship with the private sector, the constant race to keep up with new technologies, the means by which Snowden was able to pilfer the material he publicized, and the steps that are being taken to prevent another such breakdown in security.

But the NSA’s decision to allow those interviews, while voluntary, was almost surely due to the public pressure it was under. Wyden and his congressional allies have long urged that the government be required to make periodic reports on its activities, to the extent permitted by “protection of sources and methods” and other strong national security needs. Wyden would also like to see disclosures of the breadth of information collection and open acknowledgment of violations of law by the NSA or other agencies. He believes that such transparency would have a braking effect on excessive surveillance.

Feinstein and her allies would also require greater transparency, but not as much as Wyden advocates, and mostly in the form of codifying in statute the steps already taken by the NSA. Again, Brenner is thinking along similar lines. He has written that the dilemma created by the need to protect both privacy and national security “can be resolved only through oversight mechanisms that are publicly understood and trusted—but are not themselves entirely transparent.”

As President Obama recognized in his January 17 speech, an additional way to ensure more fully informed decisions by the FISA Court and to raise public trust in its work would be to encourage or require that it hear from independent voices rather than from the government alone. In the speech, Obama called on Congress to establish a panel of public advocates who would represent privacy interests before the FISA Court, an idea that he had first floated the previous summer. As Jaffer says, “When a court is presented with only one side’s arguments, it’s inevitable that the court is going to end up siding with that side more often than it ought to.”

Feinstein and Brenner as well as Jaffer and Wyden favor some version of such a change, as do Alexander, Obama, and most other players in the NSA drama; but Wyden and Jaffer would give the advocates more power than most of the others would. Feinstein, for example, would leave it to the judges to decide in which cases to appoint “friends of the court to provide independent perspectives,” while Wyden and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) prefer a permanent office of “special advocate.” The advocate would have the right to oppose the government in important cases; to ask to be heard even if uninvited by the court; and to appeal surveillance court decisions with which the advocate disagrees. Somewhere in this mixture of proposals there is surely a compromise that will ensure that independent, security-cleared lawyers will have the opportunity to expose the weaknesses in the government’s arguments without turning every case into a legal donnybrook.

Feinstein believes that there is a meta-problem more vexing and more important than the fate of any one intelligence program. The biggest challenge, as she sees it, is using the debate and reform of NSA activities to begin repairing “the destruction of faith in our government,” a blow to national security and national morale that the Snowden leaks have exacerbated.

She is surely right about that, and that makes it all the more important to put the onus on the American people’s representatives in Congress to join the president in making the tough choices. As Brenner says, “If you have to make a recorded vote on whether to give this authority to an agency, or if you’re in an agency and have to decide whether you want the authority, you’re asking yourself how you’re going to look when the bomb goes off. And that’s a scary position to be in. That’s called having responsibility. And people who’ve actually got the responsibility talk and behave differently than people who don’t.”

No one has more responsibility than President Obama himself. While he is not commonly viewed as the nation’s Spymaster-in-Chief, that function does come with his job. He sees the most highly classified intelligence every morning. He is in a position to judge its utility over time and, therefore, to make judgments about “the sources and methods” by which it is collected. And the buck stops on his desk if the system fails to anticipate a Pearl Harbor or a 9/11. No doubt that aspect of his job helps explain what seems to some of his critics a disconnect between his strong civil libertarian roots and his professorial knowledge of the Constitution on the one hand, and his essentially protective posture with regard to NSA surveillance on the other.

Whether the American people and their representatives in Congress will support the president, Feinstein, and others who want to maintain much of the status quo depends on there being more public trust in government than there is now. The distrust evident in the polls is directed at both the legislative and executive branches.

In addition, there must be a critical mass of the public willing to live with not just one permanent conundrum but two. The first, which is at the heart of the problem, is the inherent tension between national security and individual privacy. The second, which is evident in the search for a solution, is the severe limit on the degree to which transparency can be reconciled with functions of government that must be opaque—that is, secret—in order to be effective.

The challenge is captured in the most famous sentence that F. Scott Fitzgerald ever wrote, in an essay three-quarters of a century ago: “The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.” That is also the test of a first-rate intelligence agency in the service of a robust democracy.

Stuart Taylor, Jr. examines how the federal government and the eighteen states (plus the District of Columbia) that have partially legalized medical or recreational marijuana or both since 1996 can be true to their respective laws, and can agree on how to enforce them wisely while avoiding federal-state clashes that would increase confusion and harm communities and consumers.

This paper seeks to persuade even people who think legalization is a bad idea that the best way to serve the federal interest in protecting public health and safety is not for the federal government to seek an end to state legalization. To the contrary, Taylor asserts, a federal crackdown would backfire by producing an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain.

In this broad-ranging primer on the legal challenges surrounding marijuana legalization, Taylor makes the following points:

The best way to serve the federal interest in protecting public health and safety is for the federal government to stand aside when it comes to legalization at the state-level.

The federal government should nonetheless use its considerable leverage to ensure that state regulators protect the federal government’s interests in minimizing exports across state lines, sales outside the state-regulated system, sales of unduly large quantities, sales of adulterated products, sales to minors, organized crime involvement, and other abuses.

Legalizing states, for their part, must provide adequate funding for their regulators as well as clear rules to show that they will be energetic in protecting federal as well as state interests. If that sort of balance is struck, a win-win can be achieved.

The Obama Administration and legalizing states should take advantage of a provision of the federal Controlled Substances Act (CSA) to hammer out clear, contractual cooperation agreements so that state-regulated marijuana businesses will know what they can and cannot safely do.

The time for presidential leadership on marijuana policy is now. The CSA also gives the administration ample leverage to insist that the legalizing states take care to protect the federal interests noted above.

Stuart also surveys (1) what legalizing states can and cannot do without violating federal law; (2) the Obama’s administration’s approach to medical marijuana and; (3) current marijuana law at the federal level and in Colorado and Washington State.

]]>
The U.S. Supreme Court’s 2009-2010 term, set to begin on October 5, will consider major arguments on issues ranging from state’s rights and separation of powers to dog-fighting videos. With the appointment of Justice Sonia Sotomayor, the court chairs will be reshuffled.

On October 7, the Brookings Judicial Issues Forum hosted a panel discussion to preview the most anticipated and important cases. Benjamin Wittes, fellow and research director in public law at Brookings, moderated a panel of leading legal scholars and practitioners, including Stuart Taylor, nonresident senior fellow at Brookings; Randolph Moss, partner at Wilmer Hale LLP; and Professor Orin Kerr of George Washington University Law School.

The Judicial Issues Forum is a series of public discussions on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal debates of the day and weigh their potential far-reaching implications.

The following is part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

Introduction

The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the Bush Administration has been a stain on America’s honor and a catastrophe for our national image. Understandably eager to save innocent lives by breaking the resistance of a few Al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules and customs restraining coercive interrogations. They did this with a public bravado and an ostentatious disregard for international law that both scandalized world opinion and sent dangerous signals down through the ranks. These signals contributed to lawlessness and to confusion about what the rules were supposed to be. They helped open the floodgates both to CIA excesses widely seen as torture and to brutal treatment by the military of hundreds of small-fry and mistakenly-arrested innocents in Iraq and Afghanistan and of an unknown number of prisoners at Guantánamo. All this inspired widespread international and domestic revulsion and gravely undermined America’s political and moral standing and ability to work with some allied governments.

The policies that led to this scandal were long ago largely abandoned by the Bush Administration itself. Years before President Obama took power, the former president’s lawyers stopped claiming for Bush the power in effect to nullify the federal law that makes torture a crime. While the administration did not concede that highly coercive methods including waterboarding, an infamous form of simulated drowning, are banned under current law, the CIA had discontinued that method after using it to help break three Al Qaeda figures in 2002 and 2003. And Congress adopted new restrictions on interrogation in the Detainee Treatment Act in 2005 and in the Military Commissions Act of 2006. The military, with sharp prods from Congress and the Supreme Court, got out of the coercive interrogation business entirely in 2006.

But Congress, the media, and other critics have continued to focus so intensely on the sins of the past, particularly in light of President Obama’s release of the prior administration’s formal legal opinions on coercive interrogation, as to neglect serious analysis of what is at this stage a far more important question: What rules should govern future interrogations? In particular, what should our government do the next time it captures known terrorist leaders who likely possess information that could save lives yet who are fiercely determined not to divulge that information? Should the law prohibit CIA interrogators from using any coercion at all, as the Democratic-led Congress voted to do in 2008, and thereby reclaim some international good will by disavowing what may prove an important safeguard against terrorist mass murders? If not, then exactly how much coercion should Congress allow, using what interrogation methods, on what kinds of prisoners, and with what high-level approvals and congressional oversight?

The new administration has so far offered answers to these questions that are at once bold and tentative. They are bold in the sense that they represent a virtually complete repudiation of what remained of the Bush Administration’s policies. The prior administration still permitted the CIA to hold detainees in secret sites away from the prying eyes of the International Committee of the Red Cross and subject them to interrogation tactics not authorized by the military and—in some cases—in violation of, or at least in grave tension with, extant law. The Obama Administration, by contrast, has revoked the CIA’s standing detention authority and required that it comply with military interrogation policies, including an instruction not to “threaten or coerce” detainees. It has required ICRC access for all detainees. Whereas Bush spoke proudly and publicly of the “tough” interrogations he authorized, Obama emphasized in his inaugural address that “we reject as false the choice between our safety and our ideals” and stressed in his first address to Congress that “living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.”[i] He also stressed in a press conference this April that he did not regard coercive interrogation as having netted the United States intelligence benefits. “I put an end to these practices,” he said. “I am absolutely convinced that it was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.”[ii]

On the other hand, Obama’s new policies are tentative both in the sense that they are non-statutory—accomplished through an executive order, not changes in the law itself—and in the sense that they may prove temporary. While the executive order creates a hard-line anti-coercion default policy for now, it also establishes a task force to study whether the CIA needs more flexibility in interrogation rules for the longer term. And Obama is free secretly to make exceptions to his order if ever a crisis arises in which he, like Bush, may consider coercion necessary.

This essay deals fundamentally with the prospective question of how to amend American interrogation law to balance the need to avoid Bush-like excesses against the need to get intelligence from captured terrorists. It begins by examining some of the deceptions and evasions that frustrate candid discussion of coercive interrogation and torture. It then reviews the post-September 11 evolution of Bush administration policies on interrogation, the experiences of the CIA and the military, and the lessons to be learned from those experiences. It focuses, in particular, on two questions: Has coercive interrogation saved lives that could not have been saved through conventional questioning, either in the post-September 11 context or earlier in history? And is it inevitable that coercive methods, once allowed, will spin out of control? It then turns to a discussion of why, in our judgment, it is essential for Congress and the next president to craft decent, effective, democratically legitimate, internationally respectable interrogation laws for the future; of what those rules should forbid and authorize; and of how to handle exceptionally exigent circumstances that may call for violating the usual rules.

There is no one best legal regime. Each possible approach to these questions has real costs. But America should be able to improve on the legacy of Bush. It should also be able to improve on the approach of human rights groups such as the American Civil Liberties Union, Amnesty International, and Human Rights Watch—and of Congress and the Obama Administration to date. Congress has moved from what-me-worry passivity about coercive practices, to passing in December 2005 a law imposing virtuous-sounding but vague restrictions on interrogators without clear guidance, to voting in 2008 for far more stringent restrictions (a bill which Bush vetoed) without serious discussion of the costs and benefits of any of these approaches. And while the Obama Administration has not embraced such legislation, the executive order the new president signed does effectively the same thing.

We, by contrast, favor a regime characterized by relatively stringent baseline rules but with flexibility built in for the most wrenching, highest-stakes cases. Without a firmer sense than the public record offers of the effectiveness of both mildly- and highly-coercive interrogation techniques, any responsible policy proposal will necessarily be somewhat tentative. And our proposal could shift in a more or less restrictive direction in response to changed understanding of what “works” in interrogation. That said, in our view, it is essential that American interrogation policy be anchored in law. And at least as the record currently stands, that law should have the following contours:

The military should continue to ban all coercive interrogation, and the CIA should avoid it except in extraordinary circumstances, with vigorous congressional oversight to ensure compliance.

The CIA should retain the option of using mildly coercive methods such as threats, isolation, and disrupting sleep patterns—for carefully limited periods of time—on high-value prisoners who defy standard interrogation methods.

Highly coercive interrogation that falls short of torture should be off limits even for the CIA, with an important exception: Congress should reserve to the president and the attorney general the power to authorize the CIA to use highly coercive methods such as sleep deprivation and forced standing on a very small number[iii] of high-value prisoners if and only if the president and attorney general comply with detailed procedures to ensure restraint and accountability.

Torture should remain a crime in all circumstances, and the definition of torture should be tightened to reflect a more commonsense understanding of morally unacceptable coercion. If an emergency so dire should arise that the president or a subordinate feels compelled to cross (or arguably cross) the line into authorizing illegal torture, his only option should be to violate (or arguably violate) the law and chance the consequences.

[ii] Barack Obama, News Conference by the President (The White House, Washington, DC, April 29, 2009).

[iii] CIA Director Michael Hayden has said that since 2001, the agency used “enhanced techniques” on only about one-third of the fewer than 100 suspected Al Qaeda terrorists of whom it has had custody. U.S. Senate Select Committee on Intelligence, Open Hearing: Current and Projected National Security Threats, 110th Cong., 2nd sess., February 5, 2008. The exact numbers, as the subsequent releases made clear were that 94 detainees passed through the CIA’s detention program, of whom 28 were interrogated with any of the enhanced techniques. See Steven G. Bradbury to John A Rizzo, memorandum, “Re: Application of United States Obligations under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value Al Qaeda Detainees,” 30 May 2005, 29 (hereafter “Convention Against Torture” memo).

]]>
President Obama’s decision to close the Guantanamo Bay prison camp has left many thorny questions for his administration to resolve.

How many of the 250 detainees—captured by U.S. forces in Afghanistan and elsewhere—can be safely released? How many of the others can be criminally prosecuted? Are human rights groups right to demand the release of those who cannot be prosecuted, no matter how dangerous? Or should Obama continue the Bush policy of detaining as “enemy combatants” those who seem dangerous? If so, should Obama leave the final word on who is an enemy combatant to the federal judges who are reviewing detainees’ cases under a Supreme Court decision that left critical procedural issues unresolved? Or should he ask Congress to adopt new rules and to create a new national security court to administer them?

On March 17, the Brookings Institution hosted a Judicial Issues Forum in partnership with the Progressive Policy Institute to examine these questions. National Journal columnist and Brookings Nonresident Senior Fellow Stuart Taylor moderated a discussion with Harvard Law School’s Jack Goldsmith, National War College’s Harvey Rishikof, American University Washington College of Law’s Stephen I. Vladeck, and Patricia M. Wald, former Chief Judge of the U.S. Court of Appeals for the District of Columbia and former judge of the International Criminal Court for the former Yugoslavia.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum hosts regular events to address the major legal and juridical debates and events of the day and weigh their implications.

]]>
On October 6, when the U.S. Supreme Court‘s 2008-2009 term began, the Brookings Judicial Issues Forum hosted a panel discussion with leading legal scholars and practitioners who offered their insights on the upcoming Court term and discussed some of the biggest cases on the docket. Issues included the constitutionality of a key provision of the Voting Rights Act; the FCC’s ban on broadcasting “dirty words”; and an unusual petition to reconsider the June 25 ruling that the rape of a child cannot by punished by death, in which the justices made a glaring factual error.

Stuart Taylor, Jr., Brookings nonresident senior fellow, moderated the discussion with Thomas Hungar, former deputy solicitor general of the United States, and Alan Morrison, founder of Public Citizen Litigation Group and visiting professor, American University’s Washington College of Law.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juridical debates and events of the day and weigh their potentially far-reaching implications.

]]>
https://www.brookings.edu/on-the-record/what-is-the-role-of-courts-in-making-social-policy/What is the Role of Courts in Making Social Policy?http://webfeeds.brookings.edu/~/172293132/0/brookingsrss/experts/taylors~What-is-the-Role-of-Courts-in-Making-Social-Policy/
Mon, 30 Nov -0001 00:00:00 +0000https://www.brookings.edu/research/what-is-the-role-of-courts-in-making-social-policy/

]]>
By Stuart S. Taylor, Russell Wheeler

Russell Wheeler and Stuart Taylor join Walter E. Dellinger III of O’Melveny & Meyers, Ken Feinberg of The Feinberg Group, Theodore H. Frank of AEI Legal Center for the Public Interest, Mark Geistfeld of New York University School of Law, Gillian Hadfield of the University of Southern California, Lord Leonard Hoffmann of the Appellate Committee of the House of Lords, Philip Howard of Common Good, Robert Joffe of Cravath, Swaine & Moore LLP, Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit, Alan Morrison of Fair Elections Legal Network, David Schoenbrod of New York Law School, Peter H. Schuck of Yale University, and Michael Traynor of the American Law Institute to discuss the role of the courts in making social policy.

Opening Statement

Gillian Hadfield, moderator: Welcome to this online forum discussing the role of the courts in making social policy. Over the next three days, we will address such questions as: Is it possible for judges to apply the law in court cases without making or affecting social policy? What is “judicial activism”? To what extent should courts and judges take into account the broader societal effects of the cases they rule on? How have case law judgments affected social policy? Where do we draw the line between decisions that courts should make and those that they should not?

We are all coming to this discussion with different perspectives and opinions, and I look forward to exploring these issues in this discussion. Personally, I have been thinking and writing about these issues lately in two very different perspectives. One is in the context of an active debate among academic lawyers and economists about the relative merits of common law and civil code legal regimes in fostering growth in transition and development economies. Common law is frequently seen as adaptive and flexible, able to respond to changing times and needs while civil code regimes are seen as more rigid and ‘top down.’ But flexibility clearly poses the ‘activism’ question of whether judges are the appropriate adapters of law to changing times. The other perspective I have worked with recently is in relation to the increasing pressure to divert matters out of court with alternative dispute resolution and settlements; I’ve wondered whether this idealized reduced role for courts also means a reduced role for citizen participation in generating the legal standards by which we live, standards that are in large part developed through the concrete ‘activist’ process of adjudicating actual ‘cases and controversies’ and not just legislating.

Let me ask Philip Howard to weigh in to get us started with his views.
Philip Howard: What is the role of the courts in making social policy? It has been a tenet of conservatism that judges should not be “activist.” Nominees for the Supreme Court dutifully make statements that the role of judges is only to “apply the law”, not to make law. This indictment of “judicial activism” has its roots in courts that decided to take over the school system, as in Kansas City, or manage “consent decrees for decades”, as with special education in New York City (chronicled in sharp detail by Ross Sandler and David Schoenbrod in Democracy by Decree).

But perhaps this indictment of activism is too simplistic. Doesn’t it depend on the context? Someone sues the dry cleaners for $54 million for losing a pair of pants–the claim should be dismissed, or bounced to small claims court. Otherwise justice is used for extortion. Someone sues for an accident in the playground–arguing that seesaws are unreasonably dangerous. Just the availability of the claim results in the removal of seesaws around the country. Should a plaintiff have this unilateral power? Or should a judge defend social norms of reasonable risk as a matter of law?

Recent decisions by the Supreme Court and other courts illustrate how over-simplistic the rhetoric of “judicial activism” is. The Supreme Court reduces punitive damages awards in the Exxon case, citing the need for predictability, overturns gun control laws on the basis of the undeniably vague Second Amendment, and gives military detainees habeas corpus rights. The Supreme Court of California says there is a right to gay marriage, and the Supreme Court of Rhode Island says there is no right to sue manufacturers of lead paint.

Perhaps courts inevitably make social policy–that this is inherent in the power they yield. If this is so, then what are the principles by which we sort out how they should exercise this power?

Russell Wheeler: Making policy (and not just social policy) I think is inherent in the nature of the work that common law courts do, but how they do so, and how much they do so, varies with type of court (e.g., the general jurisdiction state trial level court versus most supreme courts) and the type of case (applying fairly settled principles of law—most cases—versus trying to apply a vaguely worded statute) and type of disposition (overseeing a settlement versus deciding one of the blockbuster cases that the US Supreme Court announced last week). We could spend many days sorting out these differences.

]]>
The U.S. Supreme Court debated high-profile cases on gun control, Guantanamo Bay detentions, employment discrimination, the death penalty and other subjects of national controversy during its 2007-2008 term.

On June 27, Brookings Fellow Benjamin Wittes moderated a Judicial Issues Forum that included a panel of distinguished legal experts to assess the key rulings and developments of the term. Panelists included Stuart Taylor, Brookings nonresident senior fellow and National Journal columnist; Miguel Estrada of Gibson, Dunn & Crutcher LLP; and Randolph Moss of WilmerHale.

]]>
https://www.brookings.edu/events/law-and-the-long-war-the-future-of-justice-in-the-age-of-terror/Law and the Long War: The Future of Justice in the Age of Terrorhttp://webfeeds.brookings.edu/~/196979020/0/brookingsrss/experts/taylors~Law-and-the-Long-War-The-Future-of-Justice-in-the-Age-of-Terror/
Mon, 30 Nov -0001 00:00:00 +0000https://www.brookings.edu/events/law-and-the-long-war-the-future-of-justice-in-the-age-of-terror/

]]>
More than six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror—not to al Qaeda but to its own failure to construct a set of laws that will protect the American people and govern the American side of a conflict unlike any it has faced in the past. Now, in Law and the Long War (Penguin Press, 2008), Benjamin Wittes, Brookings fellow and research director in public law, offers a vigorous analysis of how America came to its current impasse in the debate over liberty, human rights and counterterrorism and draws a road map for how the country and the next president might move forward.

On June 23, Brookings hosted Wittes for a panel discussion of his provocative new book. In Law and the Long War, Wittes argues that the essential problem with the Bush administration’s course was that it did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. He both argues for more extensive congressional involvement in designing the law of counterterrorism and boldly proposes new bodies of law to govern detention, interrogation, trial and surveillance.

Stuart Taylor, a Brookings nonresident senior fellow and National Journal columnist, moderated the discussion. Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel, and Seth Waxman, former Solicitor General of the United States, provided commentary on the book.